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PA Abolishes Common Law Marriage

by: John B. WhalenWhalen, John B., Jr. - Wayne Office

November 6, 2008

Previously published on October 23, 2003

Pennsylvania no longer recognizes Common Law Marriage.

(Note = This paper was presented on October 20, 2003. Since that time, the Pennsylvania Legislature, did in fact, render common law marriage proactively invalid after January 1, 2005, by statute (23 § 1103), stating that "[n]o common-law marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid." (Nov. 23, 2004, P.L.954, No.144, eff. 60 days)).

The Overview

Common law marriage in Pennsylvania was recognized by the Pennsylvania Supreme Court one hundred and thirty years ago. Common law marriage in Pennsylvania was questioned by the Pennsylvania Supreme Court five years ago. Common law marriage in Pennsylvania was abolished by the Pennsylvania Commonwealth Court one month ago?

As a caution, however, it is very important to keep in mind that the Commonwealth Court may not be the final word here. Decisions from this court are always subject to being appealed to - and overruled by - the Pennsylvania Supreme Court, and decisions from this court control only a limited scope of lower courts and administrative agencies (i.e., workers compensation, unemployment compensation, certain taxation issues, etc.).

Further, today is the last day that either party may file an appeal in this case, and the claimant's attorney (who represented the winning party) is of the opinion that the defendant's attorney (who represented the losing party) will file an appeal today.

The Facts

The petitioner filed a fatal claim petition alleging that he was the common law husband of the decedent who had died during the course of her employment. Because the couple had not been married ceremonially, the facts and circumstances surrounding the nature of their relationship, and the creation - or lack thereof - of their marriage, was the subject of extensive hearings before the Workers Compensation Judge.

Holding that the evidence had proved a valid common law marriage, the Workers Compensation Judge concluded that the petitioner was the common law husband of the decedent. Upon appeal, the Workers Compensation Appeal Board affirmed the Decision of the Judge. Upon further appeal, the Commonwealth Court affirmed the Order of the Appeal Board.

Most notably, and despite a finding of a valid common law marriage in this situation, the Pennsylvania Commonwealth Court abolished common law marriage in Pennsylvania from this point forward.

In a fascinatingly historical and extensively detailed majority opinion, (both factually and legally), as well as an equally well presented, yet briefer, minority opinion, the Commonwealth Court analyzed and reviewed the scenarios and reasons long ago forgotten that gave rise to a doctrine no longer needed.

The Standard

A common law marriage in Pennsylvania can be proven by two different methods. The first, and primary, test is applied when both of the parties are available to testify. This test requires proof of the exchange of words in the present tense - referred to as "verba in praesenti" - which are to be spoken with the specific purpose of creating the legal relationship of husband and wife. The second, and alternative, test is applied when either of the parties is unavailable to testify. This test then allows the creation of a rebuttable presumption in favor of a common law marriage where there is sufficient proof of cohabitation and reputation of marriage in the community.

As is somewhat evident from these tests, and "[b]ecause claims for the existence of a marriage in the absence of a certified ceremonial marriage present a `fruitful source of perjury and fraud'," Pennsylvania courts have long viewed such claims [of common law marriage] with hostility.

The History

The origins of common law marriage are as varied as the misconceptions held regarding what actually creates one. Their beginnings have been attributed to the informal marriages prevalent throughout European culture during the pre-Reformation. From there, they have been traced through England, brought to the American colonies during its settlement by the English immigrants, and then followed across the United States during its development, where they continued their existence out of necessity due to the lack of access to clergy.

Waves to abolish common law marriage began in the late 19th and early 20th centuries. Some of the many and varied reasons cited in support of its abolishment included the growing emphasis on protecting both the institution of marriage as well as the protection of the increased wealth of the average citizen. These trends continued throughout the 20th century, rising again amidst the creation of the many new governmental benefit programs in the latter part of the 20th century. New Jersey abolished common law marriage by statute in 1955, and, in support of its abolition, the New Jersey Supreme Court stated that "[i]t was not without reason that our statute and similar statutes in other states have been popularly referred to as `Heart Balm Acts." The many abuses arising from common law marriages, with their effect on public morality, private property rights and the legitimacy of children, called for correction. Our Legislature dealt with such mischief in this act in sweeping and emphatic language, permitting no exception or evasion. "Despite its judicial acceptance in many states, the doctrine of common law marriage is generally frowned on in this country, even in some of the states that have accepted it." Accordingly, such a status is the product of an antiquated law and inattention to whether there is a need for change.

The Criticism

However, despite these waves of change, Pennsylvania remains in the minority, being only one of twelve states that still recognizes common law marriage. Because of this, disapproval of the doctrine has grown harsher and more prevalent, with one of the major areas of concern being that of estate law. It has been opined that "[common law marriage] puts in doubt the certainty of the rights of inheritance," "opens the door to the imposition on estates of suppositious heirs," and "allow[s] unprincipled claimants to convert illicit relationships into honest marriages, to their advantage, on spurious claims ... against the estate of a decedent."

In 1998, the Pennsylvania Supreme Court, in the case of Staudenmayer v. Staudenmayer, implied that it was time to abolish common law marriages in this Commonwealth. The Court noted that Pennsylvania courts have long viewed such claims with hostility, warned that the "continued viability [of common law marriages in Pennsylvania] is seriously in question," but stopped short of abolishing them, concluding that "[w]hile we do not today abolish common law marriages in Pennsylvania, we affirm that claims for this type of marriage are disfavored."

However, and unlike Staudenmayer, where the issue to abolish common law marriage was not raised on appeal, the issue was properly raised in PNC Bank Corp. In light of this distinction, the PNC Bank Corp. Court noted that "the parties have preserved and fully argued the issue, so it is squarely presented for our consideration, "and stated that "[m]any sound reasons exist to abandon a system that allows the determination of important rights to rest on evidence fraught with inconsistencies, ambiguities, and vagaries. The circumstances creating a need for the doctrine are not present in today's society."

The Court cited many reasons in support of its holding to abolish common law marriages in Pennsylvania. These reasons included the fact that "the marital status of parents no longer determines the inheritance rights of their children," and "the right of a single parent to obtain child support is no longer dependent upon his or her marital status."

The PNC Bank Corp Court prefaced its holding by stating that "[a]lthough our Supreme Court, while declining to reach the issue [in Staudenmayer], "has raised the overruling axe so high that its falling is just about as certain as the changing of the seasons," concluded its holding by stating that "[a]ccordingly henceforth, this court will recognize as valid only those Pennsylvania marriages entered into pursuant to the Marriage Law procedures."

The Conclusion

As its existence in Pennsylvania grows increasingly precarious, it does appear that the door to the church of common law marriage in Pennsylvania may be closing forever. In light of this decision, when our clients say that they are married, do we still take their word for it?

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.